It has become increasingly well-known that President Barack Obama considers whistleblowers or alleged leakers to be individuals who deserve no protections whatsoever. Recently, with the seizure of the Associated Press’ records and the affidavit showing the Justice Department cast Fox News reporter James Rosen as a “co-conspirator” in a leak investigation into State Department contractor Stephen Kim, it has become clear that the administration is willing to criminalize journalists in order to bolster their own investigations.

Kim is believed by the government to have disclosed classified information to Rosen about North Korea. The FBI claims to have evidence that Rosen “solicited” information from Kim.

Special Agent Reginald B. Reyes of the FBI declared in an affidavit, “I believe there is probable cause to conclude that the contents of the wire and electronic communications pertaining to SUBJECT ACCOUNT are evidence, fruits and instrumentalities of criminal violations of 18 USC 793(d) (Unauthorized Disclosure of National Defense Information), and that there is probable cause to believe that the Reporter has committed or is committing a violation of 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.” [italics added]

The argument that there was probable cause that Rosen violated 793(d)—a section of the Espionage Act—was used to obtain further access to records in Rosen’s email account from Google.

James Goodale, former general counsel of the New York Times, who argued the Pentagon Papers case, would likely find this conclusion to be incorrect. In his book, Fighting for the Press, he points out the government submitted a “memorandum of law” where they argued the Times had violated 793(d). This section is only supposed to apply to government employees.

However, there is another way to think about this legal interpretation: the FBI thinks Rosen made it possible for Kim to commit his crime and, without Rosen’s assistance, he would have never leaked classified information.

The affidavit contains a copy of a May 22, 2009, which Reyes cites as evidence Rosen was trying to “solicit” classified information, which he would have known would be improper to publish.

The email:

…What I am interested in, as you might expect, is breaking news ahead of my competitors. I want to report authoritatively, and ahead of my competitors, on new initiatives or shifts in US policy, events on the ground in [the Foreign Country], what intelligence is picking up, etc. As possible examples: I’d love to report that the IC sees activity inside [the Foreign Country] suggesting [description of national defense information that is the subject of the intelligence disclosed in the June 2009 article]. I’d love to report on what the hell [a named US diplomat with responsibilities for the Foreign Country] is doing, maybe on the basis of internal memos detailing how the US plans to [take a certain action related to the Foreign Country] (if that is really our goal). I’d love to see some internal State Department analyses about the state of [a particular program within the Foreign Country that was the subject matter of the June 2009 article], about [the leader of the Foreign Country]….In short: Let’s break some news, and expose muddle-headed policy when we see it—or force the administration’s hand to go in the right direction, if possible. The only way to do this is to EXPOSE the policy, or what the [Foreign Country] is up to, and the only way to that authoritatively is with EVIDENCE… [italics not added]

Reyes concludes, “The Reporter asked, solicited and encouraged Mr. Kim to disclose sensitive United States internal documents and intelligence information about the Foreign Country. Indeed, in the May 20, 2009 email, the Reporter solicits from Mr. Kim some of the national defense intelligence information that was later the subject matter of the June 2009 article.” (Yet, the affidavit contains no incontrovertible proof that Kim replied to the email affirmatively by providing intelligence Rosen suggested Kim disclose.)

“The Reporter,” Reyes, adds, “did so by employing flattery and playing to Mr. Kim’s vanity and ego.” Also, “much like an intelligence officer would run an clandestine intelligence source, the Reporter instructed Mr. Kim on a covert communications plan.” They used aliases to communicate over email.

Rosen’s tactics seem like that of a spy to Reyes. They appear to add to the suspicion that Rosen was in on the alleged crime. But, is it possible Rosen is engaged in this conduct because the environment for national security reporting has become particularly chilly and he understands he must practice “tradecraft” that protects his sources? Is the government at all to blame for the fact that Rosen believes he must act covertly and not more openly?

Jack Shafer of Reuters published a column that seemed to blame Rosen for ending up in the crosshairs of a government leak investigation. He writes, “Reporters should never depend on the law alone to protect them and their sources from exposure. By observing sound tradecraft in the reporting of such delicate stories, they can keep themselves and their sources from getting buried when digging for a story.”

Journalistic techniques Rosen employed are scrutinized to point out that there are ways he could have avoided being caught. He then concludes by acknowledging the nature of the information obtained by sources that showed the role of the CIA in North Korea. And, he declares:

I have a hard time understanding what purpose Rosen’s scoop served. He appears to have uncovered no wrongdoing by the CIA in North Korea and no dramatic or scandalous change of U.S. policy that’s being concealed from the U.S. public. Boiled to its essence, the story says the U.S. has penetrated North Korean leadership. It’s a story, all right, but I can’t imagine any U.S. news outlet running it without more cause, and I’ll bet that Fox News would take it back today if it could. I doubt that Rosen has committed any crimes against the state, but offenses against common journalistic sense? I’m not so sure.

Indisputably, there is a wide surveillance state that the Justice Department has proven over recent years it will use to increase the likelihood that prosecutions of individuals will be successful. However, Shafer’s column is perversely inverted. It should be directed at power and reflecting on why the government did this to a journalist instead of blaming the victim and pointing out obvious details about how he could have avoided being criminalized.

The larger question should be: should members of the press, from establishment news organizations to independent media organizations to freelancers, have to conduct themselves as spies (or drug dealers) to do their work? Should there be push back against the government for using all manners of surveillance available to pursue reporters?

Journalists and reporters may choose to conduct themselves as spies regardless of what overtures government makes because they do not trust government and because they also believe their sources could be harmed if they do not act in this manner. But, to the extent that it becomes a requirement, there should be concern. The less open journalists are, the easier it may be for the government to justify targeting journalists as criminals.

What Rosen allegedly did is not a crime. Reporters often ask for copies of documents to supplement reporting. But, when reporters act in a clandestine manner, this case shows that the FBI will use that conduct to justify zealously pursuing a journalist to bolster a Justice Department case.

It is a little difficult to understand why a very smart man would subvert his own message so disastrously. You cannot claim that government is the one entity that is always on the side of the people and then have government act in this dictatorial way.

EmptyWheel discloses, the laughable pushback story about AP-Gate. One of DOJ shills tell us why this is a horrific crime. Reporters and other war defeatists must be gagged, as done to Bradley Manning. They must be threatened. They must be punished.

What was revealed by AP? Stopping an Underwear Bomber on an airline was not the objective of this plot with an Al Qaeda double agent. After Undie #2 failed or succeeded with his Undie attack, he would return to Al Qaeda to plan the next Undie attack. We can always trust the Al Qaeda double agents almost as much as we trust our CIA spies.

Why thwart an attack. Why would that be an objective? That would alert those clever Al Qaeda, who do watch CNN.

Anxious for his safety, the officials prevailed on the AP to delay publication so that first the agent’s family and then the agent himself could be extracted to safety. The AP then published its story, which focused on thwarting a plot to use a new and improved underwear bomb to blow up an airplane bound for the United States.
What went completely without mention in the initial coverage was the fact that thwarting this plot was not the objective of the ongoing undercover operation.

STAFFER #1: “He’s a shithead. Calls you that one racist rejoinder in every post, Barry.”

OBAMA: “Fine by me. It puts that extra spring in the ol’ goose step. Remember a few months back at Salon and Glen Greenbeck’s place where he didn’t call me that for like a week?!?”

STAFFER #2: “Oh yeah, and those drone strikes you ordered weren’t as precise.”

OBAMA: “That’s because he pissed me off.”

STAFFER #1: “How did he manage that?!? Called you ‘President Aceveda’ again?!?”

OBAMA: “Sonofabitch quoted Glen Ford from BAR and …”

STAFFER #2: “OHH FUCK! I remember that … ”

STAFFER #1: “I don’t.”

OBAMA: “Yeah, you do. Glen Ford is that self-hating douche that said he didn’t know whether this was my second term, Bush’s 5th term, or Reagan’s 9th …”

STAFFER #1: “Good thing he’s not on the Caucus.”

OBAMA: “Anyway, it was at Salon. That honky bald-ass Stone Cold lookin’ Hooker motherfucker quoted that from Glen Ford and said that had I been a white President, that sentence would’ve came out of Tristero’s or Atrios’s keyboard instead of Glen Ford’s keyboard …”

STAFFER #1: “Jesus H …”

OBAMA: “No shit. I’d rather he called me a house-wigger.”

STAFFER #2: “Yeah, at least the partisan parakeets can shove back against that. The Guardian is starting to delete his loaded barbs. But that Glen Ford/Tristero/white president shit …

If one scrolls down to page 568, this section contains some information that might prove helpful in articulating arguments against the sort of abuses of criminal law the Obama administration is engaging in:

C. INADEQUATE MENS REA REQUIREMENTS

To be sure, more recent cases cast doubt on Morissette and Freed in this respect. Among these cases are Arthur Andersen LLP v. United States,132 Ratzlaf v. United States,133 and Staples v. United States.134 In each case, the Supreme Court adopted heightened mens rea requirements, and two of these cases (Arthur Andersen and Ratzlaf) went so far as to make ignorance of the law a defense.135 Each time, the Court ratcheted up mens rea requirements for the stated purpose of preventing conviction for morally blameless conduct.

These cases, I believe, are best read as making a culpable mental state a prerequisite for punishment for all crimes, even regulatory offenses. As I have noted elsewhere:

[T]he Supreme Court has dramatically revitalized the mens rea requirement for federal crimes. The “guilty mind” requirement now aspires to exempt all “innocent” (or morally blameless) conduct from punishment and restrict criminal statutes to conduct that is “inevitably nefarious.” When a literal interpretation of a federal criminal statute could encompass “innocent” behavior, courts stand ready to impose heightened mens rea requirements designed to exempt all such behavior from punishment. The goal of current federal mens rea doctrine, in other words, is nothing short of protecting moral innocence against the stigma and penalties of criminal punishment.136

The fact remains, however, that Freed and cases like it have never been overturned. Unless that happens, confusion will persist—and, with it, the possibility that moral blameworthiness may be not be required for some crimes, especially regulatory offenses involving health and safety concerns.137

One thing, however, is certain: as long as courts fail to make proof of a culpable mental state an unyielding prerequisite to punishment, federal prosecutors will continue to water down mens rea requirements in ways that allow conviction without blameworthiness. That is exactly what prosecutors did, for example, in Arthur Andersen during the wave of post-Enron hysteria over corporate fraud. In seeking to convict Enron’s accounting firm of the “corrupt persuasion” form of obstruction of justice, prosecutors—flatly disregarding the lesson of cases like Staples and Ratzlaf—argued for incredibly weak mens rea requirements that, as the Court noted, would have subjected entirely innocuous conduct to punishment.138

Although the Supreme Court unanimously rejected the Justice Department’s efforts and overturned Arthur Andersen’s conviction,139 the firm had less cause to celebrate than one might think. After being convicted on a prosecution theory so aggressive that it could not win even a single vote from the Justices, the company—once a “Big Five” accounting firm—went out of the consulting business.140 Even now that it no longer stands convicted of a crime, its reputation has in all likelihood been damaged beyond repair. Its own conduct in the Enron matter had a lot to do with that, of course, but so did the overzealousness of federal prosecutors in exploiting the serious imperfections in federal mens rea doctrine. The Arthur Andersen episode simultaneously shows the need for substantial mens rea reform and the high cost of not having strong mens rea requirements in federal criminal law.